Citation Nr: 0634102
Decision Date: 11/03/06 Archive Date: 11/16/06
DOCKET NO. 00-15 757 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependency and indemnity compensation
(DIC) under the provisions of 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The veteran served on active duty from August 1963 to July
1965. He died in August 1998, and the appellant is his
widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a September 1998 rating decision by the
RO, which denied the appellant's claim for service connection
for the cause of the veteran's death.
In the May 2000 Statement of the Case, and consistent with
the appellant's arguments, the RO expanded the issues to
include entitlement to DIC under the provisions of
38 U.S.C.A. § 1151.
The Board remanded this case in July 2001, November 2001 and
August 2003 for additional due process and evidentiary
development.
The appellant testified before the undersigned Veterans Law
Judge at a hearing held in September 2001.
In a July 2006 statement, the representative raised the issue
of entitlement to DIC benefits under the provisions of
38 U.S.C.A. § 1318, on the basis of claimed clear and
unmistakable error in rating decisions dated June 25, 1980,
and December 1, 1986.
While the above matter appears to have been rendered moot by
the Board's decision below, the Board will nevertheless refer
the matter to the RO for any appropriate action.
FINDINGS OF FACT
1. The veteran died in August 1998; his death certificate
lists anoxic encephalopathy as the cause of death.
2. At the time of the veteran's death, service connection
was in effect for schizophrenia (previously characterized as
manic-depressive illness), evaluated as 100 percent disabling
from September 1996.
3. The service-connected psychiatric disability is shown as
likely as not to have contributed significantly in
accelerating the veteran's demise.
4. There is no longer a question or controversy regarding
the appellant's claim for DIC benefits under the provisions
of 38 U.S.C.A. § 1151.
CONCLUSIONS OF LAW
1. By extending the benefit of the doubt to the appellant,
the veteran's service-connected disability rated at 100
percent contributed substantially and materially in causing
his death. 38 C.F.R. § 3.312 (2006).
2. The appellant's claim for Dependency and Indemnity
Compensation under the provisions of 38 U.S.C.A. § 1151 is
moot. 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002); 38 C.F.R.
§ 20.101 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 redefined VA's
duty to assist a claimant in the development of a claim.
However, given the favorable action taken hereinbelow,
further discussion explaining how VA complied with this Act
is unnecessary.
The appellant contends that the veteran's service-connected
schizophrenia contributed to his death, either by preventing
him from communicating properly with treating VA physicians,
or by masking the symptoms of conditions leading to death.
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. The service-connected
disability is considered the principle cause of death when
such disability, either singly or jointly with another
condition, was the immediate or underlying cause of death or
was etiologically related to the cause of death.
To be a contributory cause of death, it must be shown that
the service-connected disability contributed substantially or
materially to death, that it combined to cause death, or that
it aided or lent assistance to the production of death. It
is not sufficient to show that it casually shared in
producing death, but rather it must be shown that there was a
causal connection. 38 C.F.R. § 3.312.
Factual background
The record shows that the veteran died in August 1998. His
death certificate lists anoxic encephalopathy as the
immediate cause of death. No other contributing or
significant causes were listed.
At the time of the veteran's death, service connection was in
effect for paranoid schizophrenia (formerly characterized as
manic-depressive illness), with an assigned 100 percent
evaluation.
The Board notes that in an April 1996 decision, VA determined
that the veteran was not competent to handle his compensation
payments.
The service medical records show that the veteran was treated
for a schizophrenic reaction.
VA examination reports on file from 1967 to 1995 document
diagnoses including schizophrenia and manic-depressive
illness, with symptoms including delusions, confusion,
impaired judgment, and agitation. In March 1976, he reported
using Lithium.
VA treatment records for 1966 to August 1998 document
treatment for psychotic disorders variously described as
schizophrenia and manic-depressive illness. His symptoms
included looseness of associations, delusions,
hallucinations, confusion, and paranoia. In the 1970s, he
was prescribed Lithium for his manic depression. The records
show he was hospitalized several times for psychiatric
symptoms.
The treatment records show he was admitted to the Highland
Drive VA Medical Center (VAMC), located in Pittsburgh,
Pennsylvania, in February 1998 with complaints that included
confusion, paranoia, inability to sleep, poor hygiene,
anxiety, depression and incontinence. He was unable to give
a history. The diagnoses at admission included that of
schizophrenia.
On February 9, 1998, while hospitalized at the above
facility, the veteran demonstrated a Lithium level which was
above the identified reference range for normal. His
medications were adjusted, but his Lithium level remained
elevated outside the normal range two days later, at which
time he was also noted to be agitated and encephalopathic.
On February 13, 1998, his Lithium level was in the normal
range.
The veteran remained at the Highland Drive facility until
March 1998, during which time he experienced acute mental
changes associated with, inter alia, delirium and
incoherence. The entries note that he was being prepared for
possible aneurism stripping, but had experienced severe
deconditioning that needed to be addressed prior to any
surgery.
The records show he was evaluated for his mental status
changes. A Computed Tomography scan of the head was
negative. He was started on treatment for possible herpes
encephalitis. He underwent a lumbar puncture, and was placed
on medication for possible meningitis. An
electroencephalogram showed generalized slowing, but no
seizures, and blood chemical testing was consistent with
diabetes insipidus.
A repeat lumbar puncture revealed findings suggesting a
possible subarachnoid hemorrhage (SAH). Follow up testing
revealed an aneurysm with possible SAH, but a neurosurgical
consult did not believe the veteran had an SAH.
The records show that, in additional to a deteriorated mental
condition, he developed a pulmonary embolism with sudden
symptoms including shortness of breath and hypotension,
requiring transfer to the intensive care unit and intubation.
He developed sepsis while in the intensive care unit, and was
treated with antibiotics for a drug-resistant staph infection
of the right lower lobe. He left the intensive care unit
alert and oriented, but deconditioned.
In March 1998, he was transferred to the VAMC located in
Altoona, Pennsylvania. He initially presented as confused,
and was not alert or oriented. Agitation was noted, but not
hallucinations or paranoia. He was noted to be moderately
toxic on Lithium, possibly contributing to the diabetes
insipidus. He was unable to give a meaningful history, and
the records provided by the Highland Drive VAMC were
incomplete.
Several days after his admission, the veteran became
unresponsive secondary to a cardiac arrest. He thereafter
remained in a persistent vegetative state from anoxic
encephalopathy until his death. In the intervening months,
he would become hypotensive and again require intubation. He
began experiencing seizures and developed a fever and
worsening hypotension.
The records show that during his lengthy hospitalization, he
developed decubitus ulcers with drug-resistant staph
infection. The records show that the appellant was
consulted, and agreed to a "do not resuscitate" order.
By May 1998, the veteran continued to exhibit a fever, and a
drug resistant urinary tract infection. His fever worsened
in July 1998, and he developed cellulitis in one wrist with a
drug-resistant staph infection.
The records show the veteran thereafter became hypotensive
and oliguric, and died in August 1998.
Following his death, the hospital report for the final
admission lists, as the final diagnoses, anoxic
encephalopathy, status post cardiac arrest, hypotension,
hypernatremia secondary to central diabetes insipidus,
prerenal azotemia, anemia of chronic disease, ileus,
pneumonia, urinary tract infection, cellulitis, sacral
decubiti, hypokalemia, and malnutrition.
At her September 2001 hearing before the undersigned, the
appellant testified that the veteran was uncommunicative for
most of his hospitalization between February 1998 and August
1998. She argued that his incoherence delayed proper
treatment because the focus of the physicians was placed on
the psychiatric disorder, rather than on physical maladies.
She noted that the veteran had been using Lithium.
In January 2006, the Board referred the case for an opinion
by a physician employed with the Veterans Health
Administration. The Board requested that the physician
address whether it was at least as likely as not that the
service-connected schizophrenia prevented the timely
diagnosis and treatment of the conditions leading to the
veteran's death, and, if so, whether any such delay
contributed substantially or materially to the veteran's
death.
In response, an opinion was received from a VA physician.
The physician explained that his review of the records showed
that the workup of the veteran's mental status change was
begun promptly by treating physicians and was conducted
aggressively.
The physician explained that schizophrenia was a psychosis
involving disturbance in the perception of reality, but not
of consciousness. He explained that the symptoms of
schizophrenia included hallucinations, paranoia, delusions,
and thought disorganization.
The physician noted that the veteran presented at the VA
facilities with disturbances in consciousness more consistent
with delirium than schizophrenia. He added that delirium was
usually the result of an underlying illness and that the
record suggested several possible underlying causes for
delirium in the veteran's case, including hypernatremia,
possible meningitis and possible SAH.
The physician further explained that the hypernatremia was
likely caused by diabetes insipidus which could have been
triggered by Lithium toxicity. He clarified that Lithium was
used to treat bipolar disorder.
The VA physician concluded that the veteran was treated
appropriately for possible meningitis. He noted that,
despite the neurosurgical consult, the veteran might have had
an SAH. The physician explained that the veteran had poor
outcomes throughout his hospitalization, but that the medical
therapy afforded him was appropriate, and that the
schizophrenia did not interfere with his treatment or timely
diagnosis.
The physician also concluded that the veteran's schizophrenia
played no role in his initial presentation, hospital course
or death.
In conclusion, the physician stated that from his review of
the record, VA provided excellent care for the veteran, and
that the symptoms presented during hospitalization were
followed up extensively with proper testing. He noted that
the treatment by VA was provided in a manner consistent with
his symptoms and diagnostic testing.
Analysis
The Board finds in this case that service connection for the
cause of the veteran's death is warranted.
Initially, the Board notes that the veteran's only service
connected disability at the time of his death was
schizophrenia, which was previously characterized as manic-
depressive illness, and for which the veteran had used
Lithium since the 1970's.
A thorough review of the entire evidentiary record shows that
the veteran's psychiatric disorder, however, characterized,
was productive of symptoms including confusion and agitation,
and required the use of Lithium.
The VA medical records for 1998 show that he presented in
February 1998 with obvious mental status changes, which
included confusion. He was incoherent to the point where he
could not provide an adequate history. He was found to have
a moderate level of Lithium toxicity and also underwent
testing and treatment for a variety of other potential
disorders in order to address the etiology of his symptoms.
Unfortunately, when he was transferred to the Altoona VAMC
for his final period of hospitalization, his complete medical
records did not accompany him, and his deteriorated mental
state prevented him from communicating any meaningful
history. Shortly thereafter, he lapsed into a persistent
vegetative state owing to anoxic encephalopathy following a
cardiorespiratory event, and succumbed several months later.
The January 2006 VA physician concluded that the delirium
present when the veteran was admitted was not attributable to
the service connected schizophrenia. He nevertheless did
point out that the veteran's Lithium toxicity could have
accounted for the altered mental status. He also explained
that the Lithium toxicity would have been related to the
veteran's manic-depressive illness.
The Board points out that the veteran's service-connected
psychiatric disorder includes manic-depressive illness, and
that he had used Lithium in the treatment of his disorder for
more than 20 years prior to his death.
The Board also notes that Lithium toxicity is documented in
the hospital records for February 1998.
In light of this evidence, the Board finds that the service-
connected psychiatric disability is shown as likely as not to
have aided or lent assistance in causing of the veteran's
death. Therefore, by extending the benefit of the doubt to
the appellant, service connection for the cause of the
veteran's death is warranted.
As for the appellant's claim for DIC benefits under the
provisions of 38 U.S.C.A. § 1151, the Board notes that this
provision awards compensation to a claimant as if the cause
of a veteran's death is service connected.
As a result of the decision to award service connection for
the cause of the veteran's death, and given the assertions
advanced by the appellant, there is no longer a question or
controversy remaining with respect to DIC under the
provisions of 38 U.S.C.A. § 1151.
Nor are any exceptions to the mootness doctrine present
because the relief sought on appeal, the award of DIC, has
been accomplished without the need for further action by the
Board. See, e.g., Thomas v. Brown, 9 Vet. App. 269, 270
(1996); Hudgins v. Brown, 365, 367-68 (1995). 38 U.S.C.A. §§
511, 7104, 7105; 38 C.F.R. § 20.101. Accordingly, the issue
of DIC under 38 U.S.C.A. § 1151 should be dismissed.
ORDER
Service connection for the cause of the veteran's death is
granted.
The claim for Dependency and Indemnity Compensation under the
provisions of 38 U.S.C.A. § 1151 is dismissed.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs